Hazard: The spindle of one or both of the pedals can break, posing a fall hazard.

Remedy: Repair Consumers should immediately stop using the recalled bicycle pedals and take them to a Trek retailer for a free repair.

Recall Date: July 26, 2018

Recall Number: 18-193

Consumer Contact: Trek at 800-373-4594 from 8 a.m. to 6 p.m. CT Monday through Friday, or online at http://www.trekbikes.com and click on Safety & Recalls at the bottom of the page for more information.

Description: This recall involves all Bontrager Line Pro flat bicycle pedals. These aluminum pedals come in orange and black. “Line Pro” and “Bontrager” are printed on the body of the pedal.

Incidents/Injuries: The firm has received five reports of broken spindles in the bicycle pedals. No injuries have been reported.

Sold At: Independent bicycle stores nationwide and online at http://www.trekbikes.com and other online retailers from April 2016 through June 2018 for about $100 for the pedals.

Importer(s): Trek Bicycle Corporation, of Waterloo, Wis.

Distributor(s): Trek Bicycle Corporation, of Waterloo, Wis.

Manufactured In: Taiwan

Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.

The Consumer Products Safety Council (CPSC) has a lot more pull, power and weight now days. Mostly because the CPSC had its power to fine and the amount, it could fine increased. However, just because a product is not working right does not mean it is subject to a CPSC recall.

Here are the requirements for a recall according to the CPSC as found in its Recall Handbook.

(1) fails to comply with an applicable consumer product safety rule or with a voluntary consumer product safety standard upon which the Commission has relied under section 9, (2) fails to comply with any other rule, regulation, standard or ban under the CPSA or any other Act enforced by the Commission, including the Flammable Fabrics Act, 15 U.S.C. §1193-1204; the Federal Hazardous Substances Act, 15 U.S.C. § 1261-1278; the Children’s Gasoline Burn Prevention Act, 110 Public Law 278 (July 17, 2008), the Virginia Graeme Baker Pool and Spa Safety Act, 110 Public Law 140 (with amendments), the Poison Prevention Packaging Act, 15 U.S.C. § 1471-1476, and the Refrigerator Safety Act; 15 U.S.C. § 1211-1214; (3) contains a defect which could create a substantial product hazard, or (4) creates an unreasonable risk of serious injury or death.

The first three normally do not apply to outdoor recreation products.

The fourth one is the one most people manufacturing products in the outdoor industry must deal with “creates an unreasonable risk of serious injury or death.”

That means the product is the cause of the injury or death. There is a link between the use of the product by a consumer and the consumer’s injury or death.

At a website page, the CPSC defines the requirements for a recall slightly differently, but generally the rules are the same.

If you are a manufacturer, importer, distributor, and/or retailer of consumer products, you have a legal obligation to report the following types of information to the CPSC:

·A defective product that could create a substantial risk of injury to consumers;

·A product that creates an unreasonable risk of serious injury or death;

·A product that fails to comply with an applicable consumer product safety rule or with any other rule, regulation, standard, or ban under the CPSA or any other statute enforced by the CPSC;

·An incident in which a child (regardless of age) chokes on a marble, small ball, latex balloon, or other small part contained in a toy or game and that, as a result of the incident, the child dies, suffers serious injury, ceases breathing for any length of time, or is treated by a medical professional; and

·Certain types of lawsuits. (This applies to manufacturers and importers only and is subject to the time periods detailed in Sec. 37 of the CPSA.)

Failure to fully and immediately report this information may lead to substantial civil or criminal penalties. CPSC staff’s advice is “when in doubt, report.”

Again for the outdoor industry, the issue is, does your product create an unreasonable risk of serious injury or death. The key word is “create.”

Equipment used by friends or Search and Rescue to find you, after you are in a jam, injured or dead, cannot be the cause of your death. What you did prior to being found is what caused your death.

First, I do not believe that an avalanche probe can create a suffocation hazard. However, that seems to be what the website, as explained by the manufacturer, is saying.

Second, there a lot of ways of dying in an avalanche, suffocation is one of them and in the US, not necessarily the main reason for avalanche deaths.

Third of the probe to work properly, may make finding someone difficult or impossible. However, IT IS NOT THE CAUSE OF THEIR BURIAL. Failure of the avalanche probe to work is not the reason why the person is suffocating. Venturing out into avalanche terrain and triggering an avalanche is the reason why the person is injured or dying.

The avalanche probe did not create the serious risk of injury or death.

Why is this a problem?

1. It places a burden on other manufacturers to do a recall when they are not needed. This is sort of like waking the sleeping giant. The CPSC now believes that avalanche rescue equipment should be recalled because it is the cause of the death.

2. Lawsuits. You can purchase a software program that grabs the recall notices from the CPSC and posts them on your websites with the heading “have you been hurt by a ………………………….” These posts are found on plaintiff’s attorney’s websites. They are looking for people who have been injured by a recalled product because the lawsuit is easy. They have proof from the federal government the recall was defective. These never get to trial; they just get to the how much stage. The manufacturer’s response to the lawsuit is “how much should I write the check for….”

3. Figure lawsuit triggers. Searches will be set up to find any reports of injuries or fatalities and avalanche probes. Every time the search finds an article like this, attorneys will dig, contact family members to see if there is money there.

If you want an example, remember the Formula 1 champion Michael Schumacher? He suffered a severe head injury skiing. One of the investigators looking at his helmet saw the GoPro mount and speculated the GoPro mounts changed the ability of the helmet to protect someone’s head. (See Michael Schumacher’s brain injury may be blamed on his GoPro.)

Avalanche probe manufacturers are going to write nuisance checks (or actually their insurance companies) to get stupid lawsuits to go away. You can win the lawsuit for $250,000, or you can get it to go away for $25,000. What do you think your insurance company is going to do?

Do Something

1. If you have a product with a problem, figure out if it needs to be recalled before recalling it. A warranty issue is not a recall. If the product does not violate a rule regulation or industry standard, cannot be swallowed by a child or just needs fixed and does not injure or kill someone it probably does not need to be recalled.

2. If your product is subject to a recall, based on your analysis, not the CPSC’s because the entire world should be recalled according to the CPSC, make sure the CPSC understands what your product does. This is not easy. I’ve explained climbing gear, crampons, avalanche airbags, etc., to the CPSC, and honestly they do not understand. Ice in Washington DC is what you put in a drink, and snow is what allows you to stay home from work.

I’ve sent product to the CPSC to test that has come back in the same condition I sent it untested, unopened and unused. I’ve no found that sending links to online videos is more effective sometimes than sending product.

4. If you must do a recall, get the language right on why your product is being recalled. It is your product and your recall being supervised by the CPSC. You need to work with the CPSC to get them to understand the issues, how the product is used and what the language must say. If you don’t you will create nightmares for yourself and the rest of the industry.

What do you think? Leave a comment.

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The public policy exception allows the release to be void when the recalled product was not pulled from the rental fleet.

This is a Utah ski rental case. The plaintiff rented skis from the defendant. While skiing, the plaintiff fell injuring her neck. She claimed she fell because the bindings prematurely released. The bindings were manufactured by K2 a subsidiary of the Jarden Corporation.

Prior to the plaintiff’s injury, K2 had notified the Consumer Product Safety Commission and issued a recall for the bindings the plaintiff was using. The recall was based due to a tendency for the bindings to unexpectedly release. The recall was issued by the CPSC and K2 had sent notice of the recall to retail and rental shops.

The plaintiff filed this suit in federal court against the defendant rental shop and the binding manufacture K2. The defendant rental shop filed this motion to dismiss because the plaintiff had signed a release when she rented the recalled skis and bindings.

Summary of the case

The defendant rental shop filed a motion for summary judgment because the plaintiff had signed a release upon renting the skis and bindings. The court first looked at releases and Utah’s law and found Utah allows people to “contract away their rights to recover in tort for damages caused by the ordinary negligence of others.” Under Utah’s law, there are three exceptions that can void a release when:

(1) the release offends public policy,

(2) the release is for activities that fit within the public interest exception, or

(3) the release is unclear or ambiguous.

The court found that the second and third exceptions were not at issue here. The first issue, that releases must be compatible with public policy under Utah’s law. The court looked at the public policy exception to the rule slightly different in Utah than in most other states that allow a release to be voided due to public policy issues.

The court looked at the federal law that created the Consumer Products Safety Commission and created the requirement that products be recalled.

Under 15 U.S.C. § 2064(b), manufacturers, distributors, and retailers are required to notify the United States Consumer Product Safety Commission when they become aware a product (1) fails to comply with applicable safety standards, (2) fails to comply with other rules, regulations, standards, or bans under any acts enforced by the Commission, (3) “contains a defect which could create a substantial product hazard,” or (4) “creates unreasonable risk of serious injury or death.”

The court then stated: “The law requires distributors and retailers to heed recall alerts issued by the Commission and ensure defective products are either fixed or not sold.” Finding this requirement puts an extreme burden on shops, retail or rental when dealing with recalled products.

The rental shop argued that the federal law cannot preempt state law, and state law allows releases. The court agreed, however, the court stated the law did not conflict or preempt the Utah law.

The court went on to say.

The rental of the ski bindings at issue in this case became unlawful once the recall notice became effective. Public policy should not favor allowing a party to insulate itself from harms caused to others arising from unlawful acts.

The said that if a release relieved the retailer of the duty to recall products, then the effect of the law would be nullified and would violate the value of the law. Public policy issues should encourage compliance with laws designed to make products safer not void them.

The court held the rental companies arguments were not valid and denied the motion for summary judgment.

So Now What?

If you get a recall notice, and you are in a retail store, rental shop, or distributor, remove the product from the shelves and/or the rental fleet. Period. The judge in his final sentence stated: “GGT’s preinjury release is unenforceable and invalid as a matter of public policy.” There is no leeway in that statement.

This may create disaster in a small rental shop. Most times the shop has one binding on all of its skis. It makes setting the bindings easier and makes training the employees on setting the bindings much easier also.

It can be a scary situation when you open an email and find you have no rental fleet. You should contact the company immediately and tell them that you are out of business effectively unless they respond and assist you in correcting the entire recalled product or replacing it.

This may be an issue you want to discuss with someone when you are negotiating bindings for your rental fleet.

Product recalls are not minor matter. Any product you have in your store that is subject to a recall is no longer available for sale until after the product has been fixed according to the manufacture’s requirements.

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35 Years of Outdoor Retailer

James Moss JD, Author

Recognized as the Go to Lawyer by the Outdoor Recreation Industry

The outdoor industry’s favorite lawyer, Moss has been known to don a toga at a show party and he learns from what he observes on the show floor. “Attending a trade show year after year allows you to watch the industry evolve, grow, change and sometimes shrink,” he says. “It shows you new sports, new activities, and new ways to get sued. Outdoor Retailer is both a barometer and an education in the outdoor recreation industry.”